|
|
English Legal History
3/31/2009
Outline
|
|
I. PERSONAL ACTIONS REVISITED
|
|
|
|
|
LANCASTRIAN,
YORKIST, AND EARLY TUDOR CONSTITUTIONS
|
|
|
|
|
I. KINGS AND BATTLES AND DATES
|
|
|
II. FROM 1461 TO THE REFORMATION PARLIAMENT
(1529–36)
|
|
|
|
|
|
|
|
Personal Actions revisited
LANCASTRIAN, YORKIST, AND
EARLY TUDOR CONSTITUTIONS
|
|
1.
|
Property, tort and contract in modern legal thought
|
|
|
a.
|
Property
|
|
|
|
i.
|
Real (land)
|
|
|
|
ii.
|
Personal (watches, money)
|
|
|
b.
|
Tort
|
|
|
|
i.
|
Intentional (assault, punch in the nose)
|
|
|
|
ii.
|
Negligence (auto accidents)
|
|
|
c.
|
Contract: enforceable agreements, normally involving a promise for a
promise
|
|
2.
|
Trespass takes over (dates approximate at best)
|
|
|
a.
|
1300—debt, detinue, covenant, account, and trespass vi et armis
|
|
|
b.
|
1350–80—trespass vi et armis—>action
on the case
|
|
|
c.
|
1500—action on the case in assumpsit
substitutes for covenant
|
|
|
d.
|
1550—trespass vi et armis in
ejectment substitutes for real actions
|
|
|
e.
|
1600 (or slightly earlier)—action on the case in trover substitues for
detinue
|
|
|
f.
|
1600—action on the case in assumpsit
substitutes for debt
|
|
2.
|
Developments discussed the week before the break:
|
|
|
a.
|
The emergence of the action on the case, in which the plaintiff is
allowed to tell a story in the central royal courts that does not involve
force and arms or against the peace, but lays out in the whereas clause a
duty that the defendant is alleged to have breached.
|
|
|
b.
|
By the end of the 14th century it seems clear that this action on the
case will be allowed in a wide variety of situations in which the defendant
has undertaken to do something and does a bad job, so that the plaintiff is
in some way damaged: the ferryman, the blacksmith, the surgeon, and the
horse-doctor.
|
|
|
c.
|
We also saw one case quite early on (1368), where the defendant had done
nothing at all and was still held liable, but that was said to be according
to the custom of the realm. The
Innkeeper’s Case.
|
|
|
d.
|
By the end of the 15th century, it has become clear that if I suffer damage
because someone has promised to do something for me and doesn’t do it, I
can bring an action on the case called assumpsit
against him. The example frequently given is the carpenter who agrees to
put a roof on the barn and doesn’t do so, so that the crop is lost. Dictum in Gray’s Inn.
|
|
|
e.
|
By the end of the 16th century, it has become clear that if I lend money
to someone and he doesn’t pay it or deliver goods on a sale to someone and
he hasn’t paid for them, I can bring an action of assumpsit against that person, and need not bring the action of
debt against him. Slade’s Case.
|
|
4.
|
Do these developments give us a system that corresponds to the modern
notions of property, tort, and contract?
|
|
|
a.
|
Where’s property?
|
|
|
|
i.
|
Ejectment substitutes for the real actions in the 16th century
|
|
|
|
ii.
|
Hints of a distinction between property in chattels and contract in
mid–13th century, when the action of detinue, which had originally been a
part of the action of debt begins to be thought of in somewhat different
terms from debt. Something like the modern distinction seems to emerge in
the mid–15th century, when the courts begin to distinguish between two
sorts of counts in detinue actions: detinue sur bailment and detinue sur
trover. Interestingly enough, the element of obligation returns when the
action on the case for trover substitutes for detinue sur trover in the
16th century.
|
|
|
b.
|
The temptation to think that we have a general contractual action after Slade’s Case is strong. If we do, Slade’s Case has virtually nothing
to do with it. Slade’s Case is
about the substitution of assumpsit
for debt, and debt is about money obligations that arise out of partially performed
contracts. The last lecture in the course will deal with this problem.
|
|
|
c.
|
That brings me to the problem of tort. The problem can be stated quite
simply. There are two writs, trespass vi
et armis and case. In the situation where there is no undertaking, no
common calling, and no possibility of proceeding under the statute of
Labourers, what are the limits on the wrongs that are actionable under
either form, and granted that the wrong ought to be actionable, what is the
appropriate writ? I’d like to get at that by focusing on Burden v. Burton.
|
|
5.
|
Berden v. Burton (1382, Mats.,
VII–24): “A man brought a writ of trespass against Davy Houlgrave
and Thomas de Burton and twelve others for his house burnt and broken, his servants
beaten and maltreated, twelve oxen and a hundred sheep taken and driven
off, and other goods and chattels taken and carried away, and other wrongs
etc., to his damage etc. …
“And as to the arson of the houses, the defendants showed how after the distress,
which was taken in the morning, some of the servants came after the
defendants, and others remained inside the manor; thus the burning which
was done was by reason of the negligence of the servants inside, who should
have watched the fire. And they
asked judgment whether etc. And he
also showed the court that he came at the third hour with the constable of
the town without any more people.
Holt (for the plaintiff). We say that they came with a great
assembly and multitude of armed men and entered the manor and in the
morning before sunrise, broke the doors and then entered the hall and
threatened the servants, with the result that the servants were in fear of
death and let the fire lie unattended and did not dare to return. Thus it was the fault of the defendants
that the manor burned. And we ask
judgment etc.
“Burgh. Now we ask
judgment on the writ, for you notice how they have alleged by their writ
how we burned their house in fact, and now they have pleaded nothing on
that point but show how we were the cause of the burning, in which event
they ought to have had an action on their case and not this action. And we ask judgment etc., upon their
admission etc.
“BELKNAP,
C.J. I also believe that the writ is
improperly framed, for you ought to have brought your special writ upon
your case, since it was not their intention to burn them, but the burning
happened by accident. Even though it
stemmed from their act, still it was done against their will. It is as if you broke my close and
entered therein, and my animals went away through this opening and fled, so
that I lost them forever; while you know nothing of this, I shall never
have a writ of trespass against you alleging that you drove off my animals,
but I really think that I shall have a general writ of trespass for
breaking my close, with no mention of the driving away of the animals, and
everything will be accounted for in the damages for the breaking of the
close, for by the breaking of the close all the damage occurred and has
been fully effected. And,
furthermore, if you break my houses, and you go away, and then other
strangers carry off my goods without your knowledge, I shall have a writ of
trespass against you for the breaking into my houses etc. and recover
everything in damages, as above.
But, if you should be knowledgable or plotting or willingly present
when the trespass is done, you shall be adjudged a principal feasor, for in
trespass no one is an accessory etc.
“And then Holt said that they
came in the morning with certain assemblies of people, as above, and broke
the doors and entered and took some straw and fired it in order to see
around them, and the straw, while afire, threw sparks on the ground. Thus they burned etc.
“BELKNAP,
C.J. Now you are speaking to the
point, for by the firing of the straw the houses were burned; thus they are
as principal feasors. And then a day
was given, as above.
“And in this case it was also agreed that if your house be next to my house
and my house is burned and your house as well by the accident of my house,
you shall never have a writ against me alleging that I have burned your
house, but rather a special writ upon your case. And, also, if I lie in your house and
place a candle on the wall, and the candle falls on the straw, so that your
house is burned, you shall have a special writ.
“And later the parties reached an agreement etc.”
|
|
Kings: England
|
Battles
|
|
Henry IV — 1399–1413
|
Shrewesbury
— 1403
|
|
Henry V — 1413–1422 (age 35)
|
Agincourt — 1415
|
|
Henry VI — 1422–1461, 1470–1471
|
Treaty
of Troyes —
1420
|
|
|
Orléans — 1429
|
|
|
Loss of France — 1449–53
|
|
Edward IV — 1461–1470, 1471–1483
|
Towton
— 1461
|
|
Edward V — 1483
|
|
|
Richard III — 1483–1485
|
Bosworth Field — 1485
|
|
Henry VII — 1485–1509
|
|
|
Henry VIII — 1509–1547
|
|
|
1.
|
Richard II—Westminster Abbey portrait; Wilton Diptych
|
|
2.
|
Richard III—National Portrait Gallery
|
|
3.
|
Henry VII—National Portrait Gallery
|
|
4.
|
Henry VIII—National Portrait Gallery
|
|
1.
|
Our chronology (p. VI–45) reflects the inescapable influence of
Shakespeare and the Tudor view of history.
|
|
|
a.
|
The traditional view: the 100 years war was followed by the Wars of the Roses,
which ended at Bosworth Field in 1485 with the glorious accession of the
Tudors and the end of the Middle Ages.
|
|
|
b.
|
There is no doubt that Henry IV needed all the support he could get.
|
|
|
c.
|
Henry V’s French adventures cost him dearly financially.
|
|
|
d.
|
The loss of France was probably inevitable.
|
|
|
e.
|
The Wars of the Roses are largely the invention of the Tudors.
|
|
|
f.
|
All this would tend to suggest that if we are dividing, then 1461 ought
to be our dividing point.
|
|
2.
|
Three themes:
|
|
|
a.
|
Perhaps because the Tudor history focused on the problem of the
succession, modern historians have a tendency to downplay its importance.
|
|
|
b.
|
The council must be an important institution at the times of minority or
insanity of the king. What recent
work has tended to show is that the council is also important in at least
some of the periods when the king is strong.
|
|
|
c.
|
Indentures and retainers.
|
|
3.
|
Two largely incremental changes in English institutions:
|
|
|
a.
|
In the first half of the 15th century control of the Chancery comes to
rest first in the council and the privy seal and then in those who possess
the signet and the way is paved for the reforms of Thomas Cromwell in the
reign of Henry VIII.
|
|
|
b.
|
We noted that Edward III had experimented with chamber finance. Richard II did not, nor did the
Lancastrians. We will see when we
return to the topic that in the second half of the 15th century there was a
return to the practice of chamber finance.
Edward IV, Richard III, Henry VII had increasingly tight control
over finances through the Chamber.
Again the final reform comes under Cromwell with the reform of the
Exchequer and the rise of the Privy Council.
|
|
1.
|
The danger of rebellion did not stop at Towton. But from 1471 to his death in 1483,
Edward IV was solidly in control.
|
|
2.
|
In April of 1483 Edward IV died young. In June, his brother Richard
usurped the crown. In 1485, Henry
Tudor (who claimed through the Beauforts), won a great victory at Bosworth
field. In 1486 Henry married
Elizabeth of York, Edward IV’s daughter, thus uniting Lancaster and York.
|
|
3.
|
The problem of the succession, however, did not end there.
|
|
4.
|
So many had lost their lives or had been attainted during the 15th
century that Henry VIII had the opportunity to create a virtually new
higher nobility. His father, Henry VII, made use of a wider circle of
advisers.
|
|
5.
|
The first European power to take the Tudors seriously was Spain.
|
|
6.
|
Henry VIII’s foreign ventures.
|
|
7.
|
The period from 1515 to 1529 was the period of the ascendancy of
Cardinal Wolsey.
|
|
8.
|
We have already said that from Edward IV on we have an increasing trade
and prosperity. There was also,
beginning in 1500, a truly phenomenal inflation. The causes of this are once more in
dispute.
|
|
9.
|
Officially Protestantism begins in the late 16th century. Most modern historians regard Henry
VIII’s break with Rome as a schism rather than as an open espousal of
Protestantism.
|
|